Marr v MEC Department of Health Eastern Cape Provincial Government and Another (3908/05 , ECJ29/06) [2006] ZAECHC 16 (10 April 2006)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 029/2006

PARTIES: Marr v MEC for Health, EC and Another

REFERENCE NUMBERS -

Registrar: 3908/2005

DATE HEARD: 5 December 2005

DATE DELIVERED: 10 April 2006

JUDGE(S): Matthee AJ

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): HJ Van der Linde SC

for the accused/respondent(s): RP Van Rooyen SC, N Gqamana

Instructing attorneys:

Applicant(s)/Appellant(s): GP Van Rhyn Minnaar & Co Inc

Respondent(s): State Attorneys

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 3908/2005

In the matter between :

GEORGE MARR APPLICANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL

DEPARTMENT OF HEALTH, EASTERN CAPE

PROVINCIAL GOVERNMENT, PROVINCE OF THE

EASTERN CAPE, THE HONOURABLE

BEVAN GOQWANA FIRST RESPONDENT

THE MEDICAL SUPERINTENDENT,

DORA NGINZA HOSPITAL, PORT ELIZABETH

DR A VEHBI SECOND RESPONDENT

MATTHEE AJ:

In this matter the issues before me are whether the first respondent (hereafter the respondent), is in contempt of court and whether the respondent should be ordered to pay any costs de bonis propriis.

HISTORY

According to the applicant, he was married to ELIZABETH DANIELS (hereinafter referred to as “the deceased”). On 29 February 2003 the deceased, accompanied by the applicant, went to the Dora Nginza Hospital, Port Elizabeth, for emergency assistance pertaining to the imminent birth of the deceased’s unborn child of whom the applicant was the father.

The applicant testified that due to the negligence of the medical practitioners and / or medical personnel who attended to and treated the deceased and the unborn child at the Dora Nginza Hospital, the deceased and the unborn child died the following day, 1 March 2004, at the Dora Nginza Hospital. In order to assess whether he had a claim his attorneys, G P Van Rhyn Minnaar & Co Inc, in terms of Section 18(1) of the Promotion of Access to Information Act 2 of 2000 requested copies of all clinical notes and medical records held by the Dora Nginza Hospital pertaining to treatment received by the deceased at the Dora Nginza Hospital, Port Elizabeth as from 1 June 2003 until 1 March 2004.

According to the applicant his attorneys received no response to their abovementioned request, and they accordingly proceeded to lodge an Internal Appeal in accordance with Section 75 of the Promotion of Access to Information Act 2 of 2000. This also bore no fruit.

As a consequence the applicant approached this Court, seeking an order compelling the respondents to furnish his attorneys with the required copies of all clinical notes and medical records held by the Dora Nginza Hospital pertaining to treatment received by the deceased at the Dora Nginza Hospital, Port Elizabeth as from 1 June 2003 until 1 March 2004.

On the 30th November 2004 the followed order (hereafter “the original order”) was granted by Dambuza A J:

“1. That the Respondent be and is hereby ordered to, within 14 (fourteen) days of service of the Order upon them:

1.1 Furnish the Applicant’s attorneys, GP Van Rhyn Minnaar & Co Inc, the following:

1.1.1 Complete copies of all clinical notes in respect of ELIZABETH DANIELS (ID 670606 0093 084) pertaining to treatment received by her at the Dora Nginza Hospital, Port Elizabeth as from 1 June 2003 until 1 March 2004;

1.1.2 Complete copies of the hospital file kept in respect of ELIZABETH DANIELS (ID 670606 0093 084) pertaining to treatment received by her at the Dora Nginza Hospital, Port Elizabeth as from 1 June 2003 until 1 March 2004;

1.1.3 Complete record of all medical practitioners and / or medical specialists who treated ELIZABETH DANIELS (ID 670606 0093 084) at the Dora Nginza Hospital, Port Elizabeth as from 1 June 2003 until 1 March 2004;

2. That the Respondents pay the costs of this Application, jointly and severally, the one paying the other to be absolved on a scale as between attorney and own client.”

From the papers before me it appears that the respondents did not oppose the said relief granted to the applicant.

Prior to personal service, the original order was served on officials at the respective workplaces of the respondents. It is apparent from the returns of service that a copy of the original order was served at the respondent’s place of business on “Mr P J FERREIRA, LEGAL ADVISER” on 25 April 2005 and on Ms Tose on the 25th April 2005 who accepted service on behalf of the second respondent.

On the 13th May 2005 the applicant’s attorneys sent identical letters to the respondent and the second respondent attaching a copy of Dambuza AJ’s order and the returns of service issued by the sheriff referred to above. In these letters they confirmed that there had not yet been compliance with the said order and indicated that if there was no response within 10 days of the letters their instructions were to proceed with contempt of court proceedings.

On the 28th June 2005 the applicant launched contempt of court proceedings against the respondents. In the affidavit of the applicant in the contempt application the history of this matter as set out above was deposed to by him. Copies of the various correspondence, returns of service and the original order of Dambuza AJ referred to in his affidavit also were attached to or incorporated into his affidavit. On the 27th July 2005, these papers were served on the respondent personally.

On the 16th August 2003 Mhlantla J made the following order (hereafter “the order”):

“1. That the Rule Nisi do hereby issue, calling upon the Respondents to show cause to this Court at on 13th September 2005, at 09h30 on Tuesday.

1.1 why they should not be committed for contempt of Court for failing to comply with the Court Order granted in this court on 30 November 2004 in case number 3099/04, a copy of which Order is annexed hereto, marked “A”.

1.2 why they should not be ordered, in their official capacities, to pay the costs of this application jointly and severally, the one paying the other to be absolved, on a scale as between attorney and own client.”

From the papers before me it appears that the respondent did not oppose the relief granted. There is no indication in the papers of how the respondent was informed of the hearing on the 16th August 2005.

The NOTICE OF SET DOWN for the 13th September was sent to the respondents by registered post on the 5th September 2005. (In the court file there is also reference to an order dated the 23rd August 2005 postponing the matter to the 30th August 2005 and extending the rule accordingly. There is no record of a hearing on the 30th August 2005. At the hearing on the 1st November 2005, referred to hereafter, neither counsel who appeared was able to enlighten me about where these two dates fitted into the equation.) The said orders dated 16th August 2005, 30th November 2004 and 23rd August 2005 were served on the respondent personally on the 14th September 2005.

On the 13th September 2005 Goliath AJ postponed the matter to the 4th October 2005 and extended the rule accordingly. Once again there was no appearance on this date for the respondents.

From the papers it would appear that this order of Goliath AJ either was served on the respondent personally or he was made aware of its existence personally by the service of a Filing Notice on him dated the 21st September 2005. Although there is no return of service from the deputy sheriff for this Filing Notice there is a signature next to the designation “MEC, DEPARTMENT OF HEALTH ….” which appears to be that of the respondent, when it is compared with his signature elsewhere in the papers. Furthermore at 09h30 on the 3rd October 2005, after attempts on the 22nd September 2005, 30th September 2005 and an earlier attempt on the 3rd October 2005, there was service on the respondent personally of “the within FILING NOTICE, ORDER OF COURT AND NOTICE OF SET DOWN ….” The deputy sheriff here must be referring to the filing notice referred to above, the order of Goliath AJ and the notice setting the matter down for 09h30 on the 4th October 2005.

On the 4th October 2005, Nepgen J postponed the matter to the 1st November 2005 and extended the rule accordingly. As before, there was no appearance by the respondent. Mr P Scott appeared for the applicant.

On 1st November 2005, the matter came before me on the motion court roll. When it was called there was no appearance for the respondent. Mr Scott, who again appeared for the applicant, requested a further postponement and an extension of the rule. I informed Mr Scott that as the court was also a party to the matter, I required an explanation from the respondents as to why there had not yet been compliance with the original order. I stood the matter down and requested Mr. Scott to inform the State Attorney’s office of my ruling. When the matter was called again there was still no appearance for the respondent. Mr Scott then informed me that the second respondent was present in court and also had been present in court at the previous court date, the 4th October 2005. From the papers it is clear that the first time there was personal service on the second respondent was on the 21st October 2005.

I again stood the matter down and asked Mr. Scott to inform the State Attorney that the matter would proceed at 14h15. At 14h15, when the matter was called again, Mr Gqamana appeared for the respondents. He informed the court that the second respondent had brought the relevant documents to court and that the applicant’s attorneys were now satisfied that there had been full compliance with the original order. Mr Scott confirmed this.

At this stage as personal service of the original court order had only been effected on the second respondent on 21st October 2005 and as he had been present in court on the said two occasions already, I informed Mr Gqamana that I was satisfied that the second respondent had complied with the original order and did not have to remain in attendance. The matter was then postponed to the 4th November 2005 to allow the respondent to consider his position.

The respondent filed an affidavit on the 3rd November 2005. On the 4th November 2005 I informed Mr Gqamana that I still had certain problems with the conduct of the respondent. I informed him that included in these problems were that on the papers before me the respondent on his own version, notwithstanding personal service of the original order on him on the 27th July 2005, did nothing to comply with the said order between 27 July 2005 and 14 September 2005 when the second personal service was effected on him, this time including the service of the rule granted on the 16th August 2005 by Manthla J. Furthermore I indicated to him that I was also not satisfied with the respondent’s explanation as to what he did after the service on him on the 14th September 2005. I also alerted him to the question of whether or not the present procedure was an infringement of the respondent’s right to a fair trial. As regards the issue of costs, I informed him that the respondent would be prudent to address the question of whether or not he should be ordered to pay costs out of his own pocket.

The matter was postponed to the 5th December 2005 and the parties were put on terms by the court to file further affidavits by certain dates if they wished to file any further affidavits. The parties availed themselves of this opportunity and further affidavits were filed by them, including by the applicant. The matter was argued on the 5th December 2005 and judgment was reserved.

EVIDENCE

The essence of the respondent’s explanation in his first affidavit dated the 3rd November 2005, was that on or soon after the 14 September 2005, when according to him he first received “personal notification of this matter”, he “instructed the legal services to investigate the matter and to report”. According to his evidence between issuing this instruction and the 3rd October 2005 he personally did nothing else. In this affidavit, and his second affidavit referred to hereafter, he made no reference to the apparent further personal service on him on the 21st September 2005. After the personal service on him on the 3rd October 2005, he “enquired from Legal Services about the matter”. He testified that Legal Services told him that “an agreement has been reached to postpone the matter so as to make available to the Applicants’ attorneys a legible copy of the required documents….” He continued: “I instructed Legal Services to contact the relevant hospital and ensure that the required documents are made available to the Applicant’s attorneys within the aforesaid 30 days period agreed upon between the parties’ legal representatives as aforementioned. I then regarded the matter to have been taken care of….” He testified that on the 1st November 2005 the second respondent informed him that legible copies were made available to the applicant and that the applicant was satisfied with the copies. He stated that the second respondent also informed him that “copies of the requested documents were made available to the applicant’s attorneys on 5th May 2005.”

In this affidavit he also stated as follows: “… Let me state quite emphatically at the outset that I only received personal notification of this matter on 14 September 2005.” This is in stark contrast to the undisputed return of service in the papers whereby there was already personal service on him on the 27th July 2005. As will become apparent from his later affidavit referred to hereafter, there was no attempt to explain this contradiction other than to say that he was mistaken. However what is clear is that, on his own version, he did nothing for the period 27th July 2005 to the 14th September 2005 despite personal service on him of the original order.

The respondent filed a further affidavit on the 18th November 2005. The essence of this affidavit was that either as far back as the 30th April 2005 or during May 2005, unbeknown to the respondent, the second respondent had in fact complied with the original order. On his own version the respondent only became aware of this after the hearing on the 1st November 2005. He testified that the order of the 16th August 2005 thus should never have been granted as it was “based on a material non-disclosure”, as at that stage there had been compliance with the original order.

In this affidavit he also informed the court that as political head of his department he is cited in legal proceedings because legislation prescribes such citation. He stated he is not responsible personally for furnishing copies of hospital records to people who request them. According to him this responsibility rests on the superintendents of each hospital. Thus, he submitted, it is the superintendent of a hospital who has to give effect to an order by the court to produce records.

He then informed the court of the size of his department and stated that it was impossible for him to get involved in the day to day administration of the hospitals in the province. He also informed the court that even when an order is served on him personally, given the demands of his job, after he has handed such order to his legal department, he “cannot possibly find the time to follow up the steps that are taken after that.”

The crux of his defence however is summed up as follows by him: “In the circumstances I respectfully say that I could not possibly have been in contempt of this Honourable Court’s order because I simply did not have knowledge of its contents until the 27th July 2005. By that time there was nothing further to be done, the order had been complied with and for that reason also, I could not possibly have been in contempt of this Honourable Court’s order.”

The applicant filed replying affidavits. In them he disputed material allegations by the respondent and denied that “copies of the requested documents were made available to my attorneys, prior to 3 November 2005.”

For purposes of this judgment there is no need for me to make any decisions about these disputes of fact. Suffice to say that on the respondent’s version it is a mystery why there was no response to the letters dated the 13th May 2005, referred to above, which were sent to the respondents by the attorneys of the applicant or why the respondents did not oppose the relief sought on the 16th August 2005. The explanation which might be open to the second respondent, that there was no personal service on him prior to the 16th August 2005, is not available to the respondent.

There is thus no dispute about the following:

1. The original order and the contempt papers were served on the respondent personally on the 27th July 2005.

2. On receipt of these papers, the respondent did nothing to comply with the original order until the 14th September 2005.

3. The original order and the order were served on the respondent personally on the 14th September 2005.

4. On or soon after the 14 September 2005, he “instructed the legal services to investigate the matter and to report”. According to his evidence between issuing this instruction and the 3rd October 2005 he personally did nothing else about it.

5. There would appear to have been personal service on him on the 21st September 2005 of a “Filing Notice” which further would have alerted him to the fact that as far as the applicant was concerned the matter was not yet resolved. He did nothing in response to this service.

6. There was further personal service on him on the 3rd October 2005 of court documents which once again would have warned him that the applicant was pursuing the matter, and that as far as the court was concerned the matter had not been resolved as one of the documents served on him was the order of Goliath AJ which extended the rule to the 4th October 2005.

7. After the personal service on him on the 3rd October 2005, he “enquired from Legal Services about the matter”. He testified that Legal Services told him that “an agreement has been reached to postpone the matter so as to make available to the Applicants’ attorneys a legible copy of the required documents….” He continued: “I instructed Legal Services to contact the relevant hospital and ensure that the required documents are made available to the Applicant’s attorneys within the aforesaid 30 days period agreed upon between the parties’ legal representatives as aforementioned. I then regarded the matter to have been taken care of….”

8. Due to no initiative or action by the respondent, on the 1st November 2005 the second respondent informed the respondent that legible copies were made available to the applicant and that the applicant was satisfied with such copies.

9. The respondent only became aware of the second respondent’s version subsequent to the hearing on the 1st November 2005, more than three months after the first personal service on him.

10. The respondent has given this court no explanation for the discrepancy between his first and second affidavit about when there was personal service on him, a discrepancy of some six weeks.

RESPONDENT’S ARGUMENT

At the hearing of the matter on the 5 December 2005, Mr van der Linde S.C., who appeared for the applicant, informed the court that the applicant would abide the decision of the court and that the issue of costs had been resolved between the parties. I was not informed of the terms of this agreement between the parties.

The first leg of the argument of Mr van Rooyen S.C., who with Mr Gqamane, appeared for the respondent, was that when the contempt proceedings were instituted, the respondent had in fact complied fully and timeously with the original order. This argument was based on the testimony of the second respondent that he had advised the applicant’s attorneys on the 5th May 2005 that a copy of the relevant record was available for collection and that the applicant’s attorneys had collected the record on the 25th May 2005. As I have already indicated, the applicant has presented the court with a different account to this version. What is common cause is that the respondent only became aware of the second respondent’s version subsequent to the hearing on the 1st November 2005. Mr van Rooyen thus in effect submitted that it was irrelevant that the respondent had done nothing in response to the court order from 27 July to 14 September and that he had merely issued an instruction on the 14th September 2005 without following this instruction up as to whether there had been compliance with the original order.

The other leg of his argument, which flowed from his first, was that contempt of court proceedings can only succeed against a public official inter alia if it is his responsibility to take steps necessary to comply with a court order but he wilfully and contemptuously refuses to comply with the court order. In the present matter he argued that the evidence before me was that the functions of the respondent do not include the furnishing of hospital records. Added to this, he argued that the respondent represents a body corporate and is cited in his representative capacity as head of that body corporate and not in his personal capacity. He continued that the original order and the order were made against the respondent in his representative capacity and not in his personal capacity.

Thus, the argument went, no personal obligations devolved upon the respondent by virtue of the original order. Accordingly, if, unbeknown to the respondent, the department through the second respondent already had furnished the applicant with the required documentation, the respondent’s failure to respond to the original order when it was served on him is of no legal consequence. In this regard it is of note that there was no testimony by the respondent that he failed to do anything after the first personal service on him because he had this view of the law. Furthermore his testimony as regards what he did when there was personal service on him the second time, was that immediately on being served with the original order and the order he issued instructions to his department. If his case was as argued by Mr van Rooyen in this leg of his argument, such a response by the respondent would make no sense.

CONSTITUTIONAL PROVISIONS

To assess this argument by Mr van Rooyen, one needs to start with the constitution of the land. Section 1 (c) of Act 108 of 1996 (hereafter “the constitution”) makes it clear that the rule of law is one of the cornerstones of the constitution. Key to the rule of law is that the dignity and effectiveness of the courts of the land are protected and promoted. Inter alia, in section 165(4) of the constitution a special responsibility is placed on all organs of state to achieve this aim. Various other sections of the constitution emphasize this responsibility, not least of all by the oath which a person such as the respondent must take to the effect that one will “obey, respect and uphold the Constitution and all other law of the Republic.” Sections 95, 107 and 129 set out the oath which various political heads must take when assuming office. On assuming office, the respondent would have to have taken the oath referred to in section 107 of the constitution. This oath also includes a commitment by the person that such person will “perform the functions of my office conscientiously and to the best of my ability”.

Similarly when I was appointed as a judge I took an oath that I would “ uphold and protect the constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”

Sections 1 (d) and 195 (e) and (f) of the constitution also make it clear that accountability and responsiveness in government are fundamental to how the constitution views public administration.

Finally, section 237 of the constitution states: “All constitutional obligations must be performed diligently and without delay.”

In the unreported matter of Kristen Carla Burchell (born Birkholtz) v Barry Grant Burchell, Case No. 364/2005, a full bench decision of this division, Froneman J states at page 7:

“[10] … Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law”(footnotes excluded).

In President of The Republic of South Africa v South African Rugby Football Union 1999 (10) BCLR 1059 (CC) at page 1115 B – D the Full Court states:

“[133] Public administration, which is part of the executive arm of government, is subject to a variety of constitutional controls. The Constitution is committed to establishing and maintaining an efficient, equitable and ethical public administration which respects fundamental rights and is accountable to the broader public. The importance of ensuring that the administration observes fundamental rights and acts both ethically and accountably should not be understated. In the past, the lives of the majority of South Africans were almost entirely governed by labyrinthine administrative regulations which, amongst other things, prohibited freedom of movement, controlled access to housing, education and jobs and which were implemented by a bureaucracy hostile to fundamental rights or accountability. The new Constitution envisages the role and obligations of government quite differently.”

EASTERN CAPE PROVINCE CONTEXT

For purposes of this judgment it is also necessary to have regard to the present context of this division as regards the attitude of the provincial government to orders of the High Court.

It is clear from the reported cases and many unreported matters in this division, that the attitude of some senior members of the provincial government of this division towards orders of the High Court is often one of indifference. In this regard Conradie JA in the matter of Jayiya v MEC for Welfare, Eastern Cape, And Another 2004 (2) SA 611 (SCA) at page 620 at paragraph [17] states:“Wholesale non-compliance with court orders is a distressing phenomenon in the Eastern Cape that has caused the courts in that province to try to devise ways of coming to the assistance of social welfare applicants whom the provincial government has failed.” (Other germane reported matters include Mjeni v Minister of Health & Welfare, Eastern Cape 2000 (4) SA 446 (Tk), East London Transitional Local Council v Member of the Executive Council of the Province of the Eastern Cape for Health & Others [2000] 4 All SA 443 (Ck) and Kate v MEC for The Department of Welfare, Eastern Cape 2005 (1) SA 141 (SECLD).)

(An instructive article for an Eastern Cape practitioner’s perspective on the issue is “The rule of law and unsatisfied judgments against the State: some thoughts” by AG Dugmore”, at page 37 in the December 2005 edition of “ADVOCATE”.)

There also can be no doubt from these matters that the political heads of the various departments of the provincial government must be aware of this problem and of the High Court’s deep concern about this state of affairs. It is also significant that all the reported cases referred to above involve either the department of welfare or the respondent’s department. There can thus be very little doubt that the respondent is aware of this problem and the High Court’s attitude to this problem. In fact in some of the reported and unreported matters the registrar has been directed to arrange for a copy of the judgment to be forwarded to the provincial government.

CONCLUSIONS

In my opinion the respondent’s argument in the present case flies in the face of all the constitutional provisions cited above, not least of all the personal accountability underlying the oaths which people such as the respondent take on assuming office. It is one thing to argue that he cannot be held responsible for furnishing copies of hospital files to everyone who applies for them. It is another to argue that it still is not his duty to ensure the provision of such files when he is directed to do so by an order of the High Court. If he had a problem with the original order sought where he was directed to furnish the hospital files, he should have opposed such relief in the first place. To accept the argument that because of the internal arrangements of the department (that superintendents must attend to such duties), the respondent was entitled to ignore the original order would make a nonsense of the said constitutional provisions and the personal accountability of the respondent underlying these constitutional provisions. In this regard it is also clear from Jayiya supra at page 617 D – E that the respondent cannot delegate himself out of responsibility.

In any event I am not persuaded that the respondent actually believed he was entitled to ignore the original order given that he was only the political head of the department and that superintendents had to attend to this sort of request. If this had been the case the question needs to be asked why he saw it necessary to say in his first affidavit: “Let me state quite emphatically at the outset that I only received personal notification of this matter on 14 September 2005. …(I immediately) instructed the legal services to investigate the matter and to report.”

It is only in his second affidavit that he forwards this argument. It is very difficult not to conclude that this was a later fabrication to address his failure to do anything when the original order first was served personally on him on the 27th July 2005.

In the matter of Townsend-Turner And Another v Morrow 2004 (2) SA 32 (CPD) at page 49 A - C Knoll J states:

“I turn to consider the application that respondent be found guilty of contempt of Court in not complying with this Court’s order. It is well established that an applicant for committal must show:

that an order was granted against the respondent ; and

that respondent was either served with the order or was informed of the grounds of the order against him and could have no reasonable ground for disbelieving the information; and

that respondent has either disobeyed it or has neglected to comply with it.

Once it is shown that an order was granted and that respondent has disobeyed or neglected to comply with it, wilfulness will normally be inferred.”

In the unreported matter in the SCA of S A Fakie, NO v CCII Systems (PTY) Ltd, case number 653/2004, judgment delivered on the 31st March 2006, in summing up his decision on civil contempt procedure Cameron JA states at page 34 that:

“(c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

(d) But once the applicant has proved the order, service or notice, and non- compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.”

In Jayiya supra at page 621 B – C Conradie JA states: “Contempt of court, even civil contempt of court, is a criminal offence (S v Beyers 1968 (3) SA 70 (A)). The way our common law has developed, it can be committed only by deliberately and mala fide … ignoring orders of court ad factum praestandum; it cannot by judicial extension be made to embrace orders ad pecuniam solvendam.”

To the extent to which the respondent might be relying on Jayiya supra, it is clearly distinguishable from the present matter as it dealt with orders ad pecuniam solvendam and not as in the present matter, ad factum praestandum. In the unreported matter in the SCA of The Member of The Executive Council For The Department of Welfare v Nontembiso Norah Kate , case number 580/04, judgment delivered on the 30th March 2006, Nugent JA at page 9, paragraph [19] states that “Jayiya decided only that a money judgment given against a provincial government … is not enforceable by incarcerating for contempt a defendant who has been cited nominally for the government if the government fails to comply with the order.”

In any event Nugent JA continues at page 17 paragraph 30: “Moreover, there ought to be no doubt that a public official who is ordered by a court to do or to refrain from doing a particular act and fails to do so is liable to be committed for contempt in accordance with ordinary principles and there is nothing in Jayiya that suggests the contrary.”

As regards how civil contempt proceedings must be approached in terms of the constitution, Froneman J in Burchell supra, after a thorough analysis of various germane judgments concludes at page 9:

“[13] I therefore conclude that committal for civil contempt of court orders remains a particular form of the crime of contempt of court under the new constitutional order, and that a respondent brought before court for committal in civil contempt proceedings is an ‘accused person’ under s. 35 (3) of the Constitution.”

However at page 34 paragraph [42] (b) of Fakie supra Cameron JA, inter alia after analysing Burchell supra states: “…The respondent in such proceedings is not an ‘accused person’, but is entitled to analogous protections as are appropriate to motion proceedings.”

As will become apparent in this judgment, for purposes of this judgment the important issue is that before the respondent can be convicted of contempt of court with the possibility of criminal sanctions following, I must be confident that he has been afforded all the constitutional protection he is entitled to, which obviously must include “analogous protections” to an accused person under section 35 (3) of the constitution.

In the present matter on the evidence before me I am of the opinion that the respondent has a case to meet as far as the crime of contempt of court is concerned. The form of the contempt in the present matter does not require a concrete result flowing from certain conduct. It is thus irrelevant, even if I find as a fact that the second respondent had complied with the original order during May 2005. The undisputed evidence before me is that when the original order was first served on the respondent personally he did nothing for some seven weeks. Even after he was given a second chance to submit a second affidavit explaining his conduct he did not attempt to explain to the court why he did nothing during this period. The closest he comes to an explanation is to say it was not part of his job description. As stated above, not only am I of the opinion that this was an afterthought, it also is an argument the courts cannot countenance given the duty on persons such as the respondent to uphold their oath that they conscientiously will obey, respect and uphold the constitution and the rights entrenched in it and that persons such as the respondent must ensure that “(their) constitutional obligations … be performed diligently and without delay”.

Furthermore, to accept this argument would be to deal a major blow to the constitutional accountability of a senior public servant such as the respondent and would further compound the problem referred to above in “Eastern Cape Province Context”.

I am also of the opinion that his failure to do anything but issue an instruction after the second personal service on him on the 14th September 2005 and his subsequent conduct leading up to the 1st November 2005, in which period there was at least one, if not two, personal services on him, is further evidence of a contemptuous attitude to the original order and order of Dambuza AJ and Mhlantla J respectively.

In addition to this I am of the opinion that the respondent also has a case of perjury to meet. His failure to explain his statement in his first affidavit, “…Let me state quite emphatically at the outset that I only received personal notification of this matter on 14 September 2005.”, notwithstanding the uncontested evidence before the court that personal service first occurred on the 27th July 2005, cannot be ignored. What aggravates the respondent’s position in this regard is that notwithstanding this problem being pointed out to him when I first heard the matter, in his second affidavit he chose to give no explanation to the court other than that it was a mistake. Given his constitutional duties as a senior member of the provincial government, this response in itself is indicative of a contemptuous attitude to the courts of this division.

Public servants such as the respondent often use their legal advisers as an excuse for what is or is not contained in their affidavits. I am of the opinion that members of the public administration, especially those who are as senior as the respondent, should not be allowed to abdicate their responsibility in terms of the constitution simply because they are not lawyers. Accountability requires that they at all times apply their minds to the issues at hand and, to quote from the oath of the respondent’s first affidavit, “know and understand the contents of (their) affidavit….”.

SECTION 35 RIGHTS OF THE RESPONDENT

On the 4th November 2005 I raised the issue with Mr Gqamana whether or not, given the specific circumstances of the present matter, there would be compliance with the respondent’s rights in terms of s. 35 of the constitution, if the respondent were to be convicted and sentenced where a rule nisi had been issued, calling upon him to show cause why he should not be convicted of contempt of court in consequence of his failure to comply with the original order. Given the time constraints on Mr Gqamana, understandably he was not in a position adequately to address my question.

When heads of argument were filed by the respondent this issue was not addressed. At the hearing of the matter on the 6th December 2005, I once again raised this issue with Mr van Rooyen. After a brief consultation with his attorney in court he informed me that the respondent had no problem with the procedure which had been adopted by the applicant.

Usually when confronted with such a scenario a court would accept that an accused person had waived any rights he might have in terms of section 35 of the constitution which the said rule nisi approach might have deprived him of. However, given the facts of the present matter, including the possible far reaching consequences for the respondent and that the applicant has obtained the relief he sought, I am of the opinion that in the present matter the rule nisi approach would have the effect of unnecessarily depriving the respondent of some of his rights contained in section 35 of the constitution. Furthermore I am aware that there are certain issues which are not clear from the papers before me and might require further investigation. In a nutshell, although I am persuaded that the respondent has a case to meet, I am unwilling to make a finding against the respondent beyond a reasonable doubt based on the evidence before me, especially as regards whether he breached the original order wilfully and in bad faith. Although the evidence before me indicates that he did ignore the original order wilfully and in bad faith, I am of the opinion that the respondent, inter alia, should be given a further opportunity to give evidence in this regard so as to discharge the evidential burden on him as set out in Fakie supra.

Thus, given the oath I have taken to uphold and protect the rights of the respondent, as I have already stated especially where the possible consequences for him can be so devastating, notwithstanding Mr van Rooyen’s attitude, I am of the view that in the present matter the respondent should be afforded the opportunity of a trial so as to give full effect to his constitutional rights.

In arriving at this decision I, inter alia, have been mindful of the approach in the matter of S v Mamabolo (E TV and Others Intervening) [2001] ZACC 17; 2001 (3) SA 409 (CC) where Kriegler J, whilst dealing with the constitutionality of the ‘summary procedure that exists at common-law’ states as follows at page 438:

“[58] The alternative is constitutionally unacceptable: it is inherently inappropriate for a court of law, the constitutionally designated primary protector of personal rights and freedoms, to pursue such a course of conduct. The summary contempt procedure employed in the present case is, save in exceptional circumstances … where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable, a wholly unjustifiable limitation of individual rights and must not be employed. Indeed, what transpired in the Court below in this case demonstrates the pitfalls of the procedure and underscores why it should be reserved for the most exceptional cases only.

[59] Justice would have been better served had the learned Judge reported the matter to the Director of Public Prosecutions and left it to that office to take up as it deemed best.”

Although the present procedure is different to the summary procedure dealt with by Kriegler J and the matters of Fakie and Burchell supra have made it clear that civil application proceedings are capable of being adapted to the rights enshrined in section 35 of the Constitution, I am of the opinion that there are common underlying principles which are applicable to both procedures, especially as in the present case the applicant now has obtained a copy of the hospital records. Thus the only issue left is the vindication of the court’s honour and integrity and there is no need for immediate or swift action.

As regards my observations concerning possible perjury, it obviously would be inappropriate for me to come to any final decision at this stage without further investigation by the Director of Public Prosecutions and the respondent being given a further opportunity to address this issue.

COSTS

Despite being invited by me to address the issue of a possible de bonis propiis costs

award against the respondent at the first and second hearing of this matter, the parties chose to make no submissions as regards costs, save to inform the court that they had reached an agreement as to the issue of costs. In this regard the applicant filed a “NOTICE TO ABIDE” which stated that he “abides by the ruling of the … Court, with the question of costs having been settled between the parties.” As stated before, the court was not informed of the terms of this agreement between the parties. However both parties agreed that the court was not bound by the agreement on costs.

The approach of courts to costs was summarized by Ackermann J in Ferreira v Levin NO And Others; Vryenhoek And Others v Powell NO And Others [1996] ZACC 27; 1996 (2) SA 621 (CC) at page 624 B -D:

“[3]The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general rule, have his or her costs. Even this second principle is subject to the first” (footnotes excluded).

(See also Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 at page 484 and Jonker v Schultz 2002 (2) SA 360 (O) at page 364 A - C).

Obviously such discretion must be exercised judicially.

Innes CJ articulated the general rule governing the award of costs de bonis propriis in Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 at page 691 in the following way:

“… a general rule was formulated to the effect that in order to justify a personal order for costs against a litigant occupying a fiduciary capacity his conduct in connection with the litigation in question must have been mala fide, negligent or unreasonable.”

(See also Re Estate Potgieter 1908 (TS) 982 at page 1000; Wilkinson v Estate Steyn And Another 1947 (2) 740 (CPD) at page 747; Grobbelaar v Grobbelaar 1959 (4) 719 (AA) at page 725 A – C; Blou v Lampert And Chipkin, NNO, And Others 1973 (1) 1 (AD) at page 14 A – C)

In the present matter had the respondent complied with his constitutional duties when the original order was served on him on the 27th July 2005, even if this merely was to establish from his department whether there had been compliance with the original order and he had then informed the applicant that as far as the department was concerned the relevant documents had been given to the applicant, the probabilities are that the applicant would not have proceeded to obtain the order on the 16th August 2005. Similarly if the respondent had adequately complied with his constitutional duties after the second and third personal service on him, the probabilities are that the rule would have been discharged forthwith.

In the absence of an explanation for his conduct after the first personal service on him I can conclude only that his failure to do anything was at best for him a gross dereliction of his constitutional duties. His response to the second and third personal service on him was not much better. There can be no doubt that his conduct in this matter meets the requirement for a special costs award against him. There simply was no real attempt to comply with his constitutional duties. His failure to give an explanation for his total inactivity for some seven weeks after the original order was first served on him, especially as he was given a second opportunity to explain himself after his first affidavit, is nothing short of breathtaking in its arrogance in the light of his constitutional duties. His knowledge of the “Eastern Cape Province Context” set out above and his senior position in government further exacerbates his position.

Accordingly, I have decided that there should be a special costs award against the respondent as regards the costs incurred by the applicant subsequent to the 27th July 2005.

In preparing this judgment I had sight of an article by Clive Plasket, “Protecting the Public Purse: Appropriate Relief and Costs Orders Against Officials”, (2000) Vol 117, SALJ at page 151. One of the options he addresses in this article is that to promote accountability within the public service, courts should consider making costs orders directing that in certain circumstances public officials pay the costs of their department, in addition to making de bonis propriis orders against such officials.

The present matter would be a strong candidate for such an order, but the respondent was never informed by the court that he should address this option. Accordingly it would be inappropriate for me to make any order to this effect. However, if the Director of Public Prosecutions does decide to prosecute the respondent for contempt of court and/or perjury, it is hoped that the relevant authority would reflect very carefully before it decides whether or not the respondent’s legal costs arising out of such prosecution should come out of the public purse.

In the light of the settlement on the question of costs between the parties, I have decided to make no other order concerning costs.

ORDER:

1. The rule is discharged.

2. The Registrar is directed to furnish a copy of this judgment and the court record to the Director of Public Prosecutions to decide whether the first respondent, Dr Bevan Goqwana, should be prosecuted for contempt of court and/or perjury.

3. The Registrar is directed to furnish a copy of this judgment to the Office of the Premier of the Eastern Cape Province.

4. The first respondent, Dr Bevan Goqwana, is directed to pay the costs of the applicant subsequent to the 27th July 2005 de bonis propriis.

_______________________________

K V MATTHEE

ACTING JUDGE OF THE HIGH COURT

(10th April 2006)